PUBLIC SECTOR LABOR LAW in the KAYE COURT Vincent Martin Bonventre, J.D., Ph.D. Taylor Law...

PUBLIC SECTOR LABOR LAW PUBLIC SECTOR LABOR LAW in thein the

KAYE COURTKAYE COURTVincent Martin Bonventre, J.D., Ph.D.Vincent Martin Bonventre, J.D., Ph.D.Taylor Law Conference, May 16, 2008Taylor Law Conference, May 16, 2008

Judges of the Current Judges of the Current CourtCourt

Kaye Court (1993-2008)Public Sector Labor Law: Case Outcomes

77

54 53 5458

87

63

23

46 47 4642

13

37

0

10

20

30

40

50

60

70

80

90

Unanimous/ Divided

Pro-E'ee Pro-Mangt

Pro-CB Con-CB

Pro-Arb'n Con-Arb'n

Pub Pol OK Pub Pol Viol

Aff PERB Rev PERB

Aff App Div Rev App Div

Outcome(Percent of Relevant cases: Total 26 cases)

Source: Vincent M. Bonventre, Albany Law School 5/08

Per

cen

t o

f R

elev

ant

case

s

The prophecies of what the The prophecies of what the courts will do in fact, and courts will do in fact, and nothing more pretentious, nothing more pretentious, are what I mean by the law.are what I mean by the law.

Oliver W. HolmesOliver W. Holmes

There is in each of us a There is in each of us a stream of tendency, whether stream of tendency, whether you choose to call it you choose to call it philosophy… Judges cannot philosophy… Judges cannot escape that current any more escape that current any more than other mortals.than other mortals. Benjamin N. Cardozo

Know your audience. That’s always the first thing. [I]t’s important to find out what you can about the court before which you are appearing. Antonin Scalia

Judith S. KayeJudith S. Kaye Appointed 1983 by Appointed 1983 by

CuomoCuomo First woman on CourtFirst woman on Court From NYC (born in From NYC (born in

Monticello)Monticello) Appointed Chief Appointed Chief

Judge 1993 by Cuomo Judge 1993 by Cuomo

(replaced SW (replaced SW [Cuomo])[Cuomo])

Reappointed March Reappointed March 2007 by Spitzer2007 by Spitzer

Mandatory age Mandatory age retirement 2008retirement 2008

Carmen Beauchamp Carmen Beauchamp Ciparick Ciparick

Appointed 1994 by Appointed 1994 by CuomoCuomo

(replaced SFH (replaced SFH [Cuomo])[Cuomo])

First Hispanic on CourtFirst Hispanic on Court From NYCFrom NYC Reappointed Jan. 2008Reappointed Jan. 2008

By SpitzerBy Spitzer Mandatory age Mandatory age

retirement 2012retirement 2012

Victoria A. Graffeo Victoria A. Graffeo

Appointed 2000 by Appointed 2000 by PatakiPataki

(replaced JWB (replaced JWB [Cuomo])[Cuomo])

From Guilderland From Guilderland (born Rockville (born Rockville Center)Center)

Term expires Nov. Term expires Nov. 20142014


Susan P. ReadSusan P. Read


(replaced HL (replaced HL [Cuomo])[Cuomo])

From Capital Region From Capital Region (born Gallipolis, Ohio)(born Gallipolis, Ohio)


Term expires Jan. Term expires Jan. 20172017

Robert S. Smith Robert S. Smith


(replaced RW (replaced RW [Pataki])[Pataki])

From NYCFrom NYC Mandatory age Mandatory age


Eugene F. Pigott, Jr. Eugene F. Pigott, Jr.


(replaced GBS (replaced GBS [Cuomo])[Cuomo])

From Grand Island From Grand Island [Buffalo area][Buffalo area]

(born Rochester, (born Rochester, NY)NY)


Theodore T. Jones Jr. Theodore T. Jones Jr.

Appointed 2007 by Appointed 2007 by Spitzer (replaced Spitzer (replaced AMR [Pataki]AMR [Pataki]

From NYCFrom NYC Mandatory age Mandatory age


Richard C. Wesley Richard C. Wesley (resigned 2003)(resigned 2003)

Appointed 1997 by PatakiAppointed 1997 by Pataki

(replaced RDS [Cuomo])(replaced RDS [Cuomo]) From LivoniaFrom Livonia

[Rochester area][Rochester area]

(born Canandaigua, New (born Canandaigua, New York)York)

Resigned for 2d Circuit Resigned for 2d Circuit appointment, 2003appointment, 2003

Pataki replaced w/RS Pataki replaced w/RS SmithSmith

George Bundy Smith George Bundy Smith (retired 2006) (retired 2006) Appointed 1992 by Appointed 1992 by

CuomoCuomo

(replaced FA [Cuomo])(replaced FA [Cuomo]) From NYC (born New From NYC (born New

Orleans)Orleans) Denied reappointment Denied reappointment

by Pataki September by Pataki September 20062006

(mandatory age (mandatory age retirement would have retirement would have been 2007)been 2007)

Pataki replaced w/ Pataki replaced w/ PigottPigott

Albert M. Rosenblatt Albert M. Rosenblatt (retired 2006)(retired 2006)


(replaced VJT (replaced VJT [Cuomo])[Cuomo])

From Dutchess From Dutchess County (born NYC)County (born NYC)

Reached mandatory Reached mandatory retirement age, 2006retirement age, 2006

Spitzer replaced w/ Spitzer replaced w/ JonesJones


77

54 53 5458

87

63

23

46 47 4642

13

37

0

10

20

30

40

50

60

70

80

90

Unanimous/ Divided

Pro-E'ee Pro-Mangt

Pro-CB Con-CB

Pro-Arb'n Con-Arb'n


Aff PERB Rev PERB


Outcome(Percent of Relevant Cases: Total 26 Cases)


Per

cen

t o

f R

elev

ant

Cas

es

Kaye Court (1993-2008)Public Sector Labor Law:

Unanimous/Divided Decisions

77

2523

75

0

10

20

30

40

50

60

70

80

90

Unanimous/ Divided ('93 - '08) Unanimous/ Divided (2007)

Outcome: Unanimous/Divided(Percent of Total 26 cases)


Per

cent

of

Tota

l Cas

es


Unanimous/Divided Decisions

20

1

6

3

0

5

10

15

20

25

Unanimous/ Divided ( '93 - '08) Unanimous/ Divided (2007)

Outcome: Unanimous/Divided(Number of Cases: Total 26 Cases)


Num

ber

of C

ases

Recent Divided DecisionsRecent Divided Decisions Mayor of City of New York Mayor of City of New York (2007) [S]: Local Law (2007) [S]: Local Law

expanding “uniformed” status to add’l fire service expanding “uniformed” status to add’l fire service employees not precluded by TL or Mayoral prerogative. employees not precluded by TL or Mayoral prerogative. Read dissent: TL preempts. Read dissent: TL preempts.

City of Long BeachCity of Long Beach (2007) [P]: CBA provision on (2007) [P]: CBA provision on transferring displaced provisional employees conflicts w/ transferring displaced provisional employees conflicts w/ CSL & municipal authority. K & C dissent: CSL & municipal authority. K & C dissent: protection of employees by placement into open position protection of employees by placement into open position not necessarily violative.not necessarily violative.

NYC Transit AuthNYC Transit Auth (2007)[S]: No TL right to union (2007)[S]: No TL right to union representation at disciplinary interview. K & C representation at disciplinary interview. K & C dissent: such representation fundamental to dissent: such representation fundamental to participating in union.participating in union.

****************************************************** Earlier…City of Watertown Earlier…City of Watertown (2000) [K]: No statutory (2000) [K]: No statutory

(GML 207-c) or PP bar to bargaining for arb procedures (GML 207-c) or PP bar to bargaining for arb procedures for contesting municipal initial determinations. Ro, for contesting municipal initial determinations. Ro, GBS & L dissent: defeats initial determination authority.GBS & L dissent: defeats initial determination authority.


Pro-Employee/Pro-Management Decisions

5450

4650

0

10

20

30

40

50

60

70

80

90

Pro-Employee/ Pro-Management Cases

Pro-Employee/ Pro-Management Issues

Outcome: Pro-E'ee/ Pro-Mangt(Percent of Total 26 Cases/Total 30 Issues)


Per

cent

of T

otal

Cas

es/Is

sues


Pro-Employee/Pro-Management Decisions

50

25

50

75

0

10

20

30

40

50

60

70

80

90

Pro-Employee/ Pro-Management ('93 - '08)

Pro-Employee/ Pro-Management ('06 - '07)

Outcome: Pro-E'ee/ Pro-Mangt(Percent of Total 30 Issues; 8 Issues 2007)


Per

cent

of I

ssue

s

Recent Pro-Management Recent Pro-Management DecisionsDecisions City of Long BeachCity of Long Beach (2007): Disapproving CBA provision (2007): Disapproving CBA provision

protecting displaced provisional employees, as violative of protecting displaced provisional employees, as violative of CSL.CSL.

County of ChautauquaCounty of Chautauqua (2007): Disapproving CBA (2007): Disapproving CBA provision on layoffs by seniority alone, as violative of CSL. provision on layoffs by seniority alone, as violative of CSL. (But interdepartmental bumping ok for CBA.)(But interdepartmental bumping ok for CBA.)

NYC Transit AuthorityNYC Transit Authority (2007): Rejecting any right under (2007): Rejecting any right under TL to union rep at disciplinary precharge interview.TL to union rep at disciplinary precharge interview.

Professional Staff Congress-CUNYProfessional Staff Congress-CUNY (2006): Approving (2006): Approving CUNY’s unilateral change of policies during negotiation of CUNY’s unilateral change of policies during negotiation of new CBA because not covered in expired CBA.new CBA because not covered in expired CBA.

Patrolmen’s Benevolent Ass’nPatrolmen’s Benevolent Ass’n (2006): Police discipline (2006): Police discipline not subject to CB where municipality has laws preexisting not subject to CB where municipality has laws preexisting TL.TL.

Poughkeepsie Professional Firefighters Assn.Poughkeepsie Professional Firefighters Assn. (2006): (2006): Rejecting CB over a municipality’s authority to make initial Rejecting CB over a municipality’s authority to make initial determinations of disability & eligibility for benefits.determinations of disability & eligibility for benefits.


Pro/Con Collective Bargaining Decisions

534847

52

0

10

20

30

40

50

60

70

80

90

Pro-Bargaining/ Con-Bargaining Cases

Pro-Bargaining/ Con-Bargaining Issues

Outcome: Pro/Con Bargaining(Percent of Relevant18 Cases/Relevant 21 Issues)


Per

cent

of C

ases

/Issu

es


Pro/Con Collective Bargaining Decisions

48

29

52

71

0

10

20

30

40

50

60

70

80

90

Pro-Bargaining/ Con-Bargaining ('93 - '08)

Pro-Bargaining/ Con-Bargaining ('06 - '07)

Outcome: Pro/Con Bargaining(Percent of Relevant Total 21 Issues; 7 Issues '06+'07)


Per

cen

t o

f Is

sues


Pro/Con Arbitartion Decisions

54 53

46 47

0

10

20

30

40

50

60

70

80

90

Pro-Arbitration/ Con-Arbitration Cases

Pro-Arbitration/ Con-Arbitration Issues

Outcome: Pro/Con Arbitration(Percent of Relevant14 Cases/Relevant 15 Issues)


Per

cen

t o

f C

ases

/Issu

es


Pro/Con Arbitration Decisions

53

20

47

80

0

10

20

30

40

50

60

70

80

90

Pro-Arbitration/ Con-Arbitration ('93 - '08)

Pro-Arbitration/ Con-Arbitration ('06 - '07)

Outcome: Pro/Con Arbitration(Percent of Relevant Total 15 Issues; 5 Issues '06+'07)


Per

cen

t o

f Is

sues


Public Policy (OK/Violation) Decisions

58 57

42 43

0

10

20

30

40

50

60

70

80

90

Public Ploicy OK/ Public Policy Viol.Cases

Public Policy OK/ Public Policy Viol.Issues

Outcome: OK/Viol. Public Policy(Percent of Relevant 13 Cases/Relevant 14 Issues)


Per

cen

t o

f C

ases

/Issu

es


Public Policy (OK/Violation) Decisions

57

20

42

80

0

10

20

30

40

50

60

70

80

90

Public Policy OK/ Public Policy Viol.('93 - '08)

Public Policy OK/ Public Policy Viol.('06 - '07)

Outcome: OK/Viol. Public Policy(Percent of Relevant Total 14 Issues; 5 Issues '06+'07)


Per

cent

of I

ssue

s

Recent Decisions on Public Recent Decisions on Public Policy (Violation)Policy (Violation)

City of Long BeachCity of Long Beach (2007): Provisional (2007): Provisional employees.employees.

County of ChautauquaCounty of Chautauqua (2007): Seniority layoffs. (2007): Seniority layoffs. (But not interdepartmental bumping.)(But not interdepartmental bumping.)

Patrolmen’s Benevolent Assn. of C. of N.Y.Patrolmen’s Benevolent Assn. of C. of N.Y. (2006): Police Discipline.(2006): Police Discipline.

Poughkeepsie Professional Firefighters Assn.Poughkeepsie Professional Firefighters Assn. (2006): Initial determinations.(2006): Initial determinations.

************************************************** Blackburne and Gov’s Ofc. of Emp. Rel.Blackburne and Gov’s Ofc. of Emp. Rel. (!996): (!996):

CB or arbitration over disciplinary discharge for CB or arbitration over disciplinary discharge for Hatch Act violation contravenes public policy Hatch Act violation contravenes public policy which renders this a sovereign decision.which renders this a sovereign decision.

Schenectady Police Ben. AssnSchenectady Police Ben. Assn. (1995): GML . (1995): GML 207-c precludes CB over municipalities unilateral 207-c precludes CB over municipalities unilateral rules re: light duty for sick or injured police, rules re: light duty for sick or injured police, surgery, and waiver or pertinent medical surgery, and waiver or pertinent medical confidentialityconfidentiality..

Decisions on Public PolicyDecisions on Public Policy(No Violation)(No Violation)

City of JohnstownCity of Johnstown (2002): Arbitration over the (2002): Arbitration over the meaning of CBA retirement benefits provision. meaning of CBA retirement benefits provision. (G dissent.)(G dissent.)

NYC Transit AuthorityNYC Transit Authority (2002): Arbitration of (2002): Arbitration of disciplinary penalty imposed by TA.disciplinary penalty imposed by TA.

City of WatertownCity of Watertown (2000): CB over procedures (2000): CB over procedures for contesting municipal initial determinations. for contesting municipal initial determinations. (Ro, GBS, L dissent.)(Ro, GBS, L dissent.)

Professional, Clerical, Technical Employees Professional, Clerical, Technical Employees AssnAssn. (1997): CB on promotional practices and . (1997): CB on promotional practices and preferences based on exam scores.preferences based on exam scores.

Newark Valley C. Sch. DistNewark Valley C. Sch. Dist. (1994): CB over . (1994): CB over bus drivers smoking when children absent not bus drivers smoking when children absent not preempted by Educ. L or Pub. Health L.preempted by Educ. L or Pub. Health L.


Affirm/Reverse PERB8783

1317

0

10

20

30

40

50

60

70

80

90

Affirm PERB/ Reverse PERB Cases

Affirm PERB/ Reverse PERB Issues

Outcome: Aff/Rev PERB(Percent of Relevant 10 Cases/Relevant 12 Issues)


Per

cen

t o

f C

ases

/Issu

es


Affirm/Reverse PERB83

75

17

25

0

10

20

30

40

50

60

70

80

90

Affirm PERB/ Reverse PERB ('93 - '08)

Affirm PERB/ Reverse PERB ('06 - '07)

Outcome: Aff/Rev PERB(Percent of Relevant Total 12 Issues; 4 Issues '06+'07)


Per

cen

t o

f Is

sues

Decisions on PERB Decisions on PERB (Aff’d)(Aff’d)

Professional Staff Congress-CUNYProfessional Staff Congress-CUNY (2006): Waiver (2006): Waiver of rights in expired CBA is “status quo”.of rights in expired CBA is “status quo”.

Patrolmen’s Benevolent Ass’nPatrolmen’s Benevolent Ass’n (2006): NYC police (2006): NYC police discipline not subject to CB.discipline not subject to CB.

Poughkeepsie Professional Firefighters Assn.Poughkeepsie Professional Firefighters Assn. (2006): Initial determinations not for CB..(2006): Initial determinations not for CB..

City of WatertownCity of Watertown (2000): Procedures for (2000): Procedures for contesting initial determinations are T or C of contesting initial determinations are T or C of employment. employment.

Newark Valley C. Sch. DistNewark Valley C. Sch. Dist. (1994): Requiring CB . (1994): Requiring CB over bus drivers smoking when children absent.over bus drivers smoking when children absent.

********************************************** BUT:BUT:

NYC Transit AuthorityNYC Transit Authority (2007): TL right to (2007): TL right to “participate” in a union includes right to union “participate” in a union includes right to union representative at disciplinary interview. (Rev’d over representative at disciplinary interview. (Rev’d over K & C dissent.)K & C dissent.)


Affirm/Reverse Appellate Division

6367

3733

0

10

20

30

40

50

60

70

80

90

Affirm App Div/ Reverse App Div Cases

Affirm App Div/ Reverse App Div Issues

Outcome: Aff/Rev App Div(Percent of Total 28 Cases/Total 30 Issues)


Per

cen

t o

f C

ases

/Issu

es


Aff/Rev App Div Departartments100

50

85

37

0

50

15

63

0

10

20

30

40

50

60

70

80

90

100

Affirm / Reverse App Div 1st

Affirm / Reverse App Div 2d

Affirm / Reverse App Div 3d

Affirm / Reverse App Div 4th

Outcome: Aff/Rev App Div Depts(Percent of Issues: 1st-4, 2d-6, 3d-13, 4th-8)


Per

cent

of I

ssue

s


77

54 53 5458

87

63

23

46 47 4642

13

37

0

10

20

30

40

50

60

70

80

90

Unanimous/ Divided

Pro-E'ee Pro-Mangt

Pro-CB Con-CB

Pro-Arb'n Con-Arb'n


Aff PERB Rev PERB


Outcome(Percent of Relevant Cases: Total 26 Cases)


Per

cen

t o

f R

elev

ant

Cas

es

Kaye Court (1993-2008)Public Sector Labor Law: Recent Outcomes

(2006-2007)

57

2529

20 20

43

7571

80 80

0

10

20

30

40

50

60

70

80

90

Unanimous/ Divided

Cases

Pro-E'ee Pro-Mangt

Issues

Pro-CB Con-CB

Issues

Pro-Arb'n Con-Arb'n

Issues


Issues

Outcome(Percent of Relevant Cases/Issues)


Per

cen

t

PUBLIC SECTOR LABOR LAW in the KAYE COURT Vincent Martin Bonventre, J.D., Ph.D. Taylor Law...

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